Page images

Vol. IV.]

(No. 11.


in this that a jar or blic, the wall, leaoss the cartu

tion then becomes one for a jury, to be determined upon all its facts, of the probability of injury, and the grossness of the act of imputed negligence. Such was the nature of the case. This building was a factory, in which several kinds of business were carried on in different stories, requiring the use of a hoisting apparatus above, and an inclined plane below, for the easy carriage of heavy articles, machinery, &c., into and out of the factory. These appliances were approached by means of a private opening or cartway, shut in by a gate, which their use required to be often opened for the ingress of wagons and hands engaged in the business. The gate and passage way opened out on a public and much frequented street, where persons were passing and children playing. Unlike an ordinary private alley, this passage was often open, and therefore liable to the incursions of children, and even grown persons, from thoughtlessness, accident, or curiosity. Now, the inclined way, which did the injury, was a dangerous trap. It was a heavy platform, weighing eight or nine hundred pounds, attached by hinges within eighteen or twenty inches of the wall, and when lowered it fell across the cartway. When not lowered it stood upright against the wall, leaning so little beyond the centre of gravity that a jar or slight pull would cause it to fall forward. Its fall, in this instance, caught four children beneath it; one had his back broken, another his hands mashed, and two escaped under the cavity. It was held by no hook or other fastening, but merely rested by its own slight weight beyond the equipoise, ready, therefore, to catch children, like mice beneath a dead fall. When wagons passed, it was often held up by hand, and a witness saw it fall against the wheels.

Now, can it be righteously said that the owner of such a dangerous trap, held by no fastening, so liable to drop, so near a public thoroughfare, so often open and exposed to the entry of persons on business, by accident, or from curiosity, owes no duty to those who will be probably there? The common feeling of mankind as well as the maxim, Sic utere tuo ut alienum non lædas, must say this cannot be true; that this spot is not so private and secluded as that a man may keep dangerous pits or dead-falls there without a breach of duty to society. On the contrary, the mind, impelled by the instincts of the heart, sees at once that in such a place, and under these circumstances, he had good reason to expect that one day or other some one, probably some thoughtless boy, in the buoyancy of play, would be led there, and injury would follow, especially, too, when prompted by knowledge that a fastening was needed. Perhaps the best inonitor in such a case is the conscience of one who feels in his dreadful recollection the crushing sense that he had left such an engine of ill to take the life of an innocent child. Such, too, is the humanity of the law, that one may not justifiably, or even excusably, place a dangerous pitfall, or wolf trap or a spring trap, purposely to injure even wilful trespassers poaching upon his grounds. The common feeling of mankind, guided by the second branch of the great law of love, and the common sense of jurors, must be left in such a case to pronounce upon the facts. We see no error, therefore, in submitting this case on its facts to the verdict of a jury. The verdict, when approved by the court, must be permitted to stand, for we take it, no judge who sees manifest injustice done by the verdict will permit it to stand. An upright judge does his duty quite as

hiteously he to drop i perso

Vol. IV.]

BYRD v. Nunn.

(No. 11.

well when he strikes down a false and unjust verdict as when he approves of that which he cannot condemn.

Judgment affirmed.


(37 L. T. N. S. 90.)



In an action for specific performance of an agreement to grant a lease, the statement of

claim alleged that the defendant's predecessor in title made the agreement, by his lawfully authorized agent, with (H.) the plaintiff's predecessor in title. The statement of defence denied this, repeating the words of the statement of claim, and then alleged that H. was of unsound mind at the time when the agreement was alleged to have been signed, and was incapable of and did not lawfully authorize any person to sign the agreement on his behalf. Held, that the defendant could only produce evidence as to the state of the mind of H., and could not enter into the question as to whether the agent was authorized or not.

FRY, J. This is a claim for specific performance of an agreement entered into in 1865 by the agent of a person named Hutley, and the present question is simply whether the statement of defence has raised the issue that the agent was in fact not authorized by Hutley; and in my opinion that issue is not raised. [His lordship here read the first paragraph.] It is evident that the denial of the allegation in the claim is justified if any one of several circumstances is not true; for instance, if the agreement was entered into on the 19th of February instead of on the 25th, or if John Hutley was of No 1 High Street, and not of No. 2, and so on, through all the circumstances alleged in that paragraph. This appears to me to be exactly a case within Order XIX., Rule 22, and it is not a sufficient denial of any particular allegation. But in the latter part of the paragraph I find an allegation of the fact that Hutley was of unsound mind ; and that is followed by a conclusion that in consequence of his being of unsound mind he was incapable of making an agent. This is a substantial answer, and in my opinion that does satisfy the rule, assuming that the point on which the defendant means to rely is the unsoundness of Hutley's mind. If the defendant meant to rely on anything more, I think that a substantial answer has not been given. The statement of defence denies several facts, and follows that denial by an allegation of one particular fact which justifies that denial ; but there is no allegation of any other particular fact which would justify any other part of that denial. In paragraph 50 of the statement of defence there is no doubt a denial that any agreement for a lease had been entered into by John Hutley, or any person lawfully authorized by him ; but that does not, as it stands, entitle the defendant to go into evidence as to the authority of the agent assuming the soundness of mind of Hutley. That allegation involves premises of law and of fact, and at least three propositions of fact : first, that Hutley was of unsound mind ; secondly, that, being of unsound mind, he did not authorize his agent to contract ; and, thirdly, that (No. 11.

Vol. IV.]

NOTES OF New Books.

have called the attehen asked for leave that Joh

the agent, though authorized, could not for some reason lawfully contract. I find, therefore, three facts which would justify this denial, and one of them alone alleged as a fact. I come, therefore, to the conclusion that that denial, being justified by a fact specifically alleged, must be taken to refer to that specific fact and not to the others. If the defendant desired to set up any other matter of fact which would have led to the same conclusion, he should have done so substantially and specifically, and should have called the attention of the plaintiff to that fact.

Fischer, Q. C., then asked for leave to amend, under Order XXVII., Rule 1, by striking out the statement that John Hutley was of unsound mind, and wished to try only the question of want of authority in the agent.

FRY, J., refused, as he did not wish the opposite party to be surprised, and be obliged to defend an issue which was only raised at the trial. It would introduce laxity in the pleadings and increase expense.

Evidence was then given as to Hutley's state of mind at the time the agreement was signed.

FRY, J., was of opinion that Hutley was in a sound state of mind at the time, and made an order for specific performance.

NOTES OF NEW BOOKS. Messrs. LINDSAY & BARKER, of Philadelphia, have published a valuable and interesting work entitled Forensic Medicine and Toxicology. It is by W. BATHURST WOODMAN, M. D., &c., and Chas. MEYMOTT Tipy, M. B., &c., and is embellished with eight full lithographic plates and one hundred and fifteen other illustrations.

Messrs. WARD & SELOUBET, of New York, will issue during November a Digest of the Law of Trade-marks, by CHARLES E. CODDINGTON, as presented in the reported adjudications of the Courts of the United States, Great Britain, Ireland, Canada, and France, from the earliest period to the present time. Also the United States Statutes and the Treaties of the United States concerning Trade-marks, and the Rules and Forms of the United States Patent Office for their registration. The book will present for the first time, in compact and accessible form, the adjudications of every court in which the English language is spoken, upon a subject that has grown to be a separate branch of the law. The decisions of the French tribunals are included, and although they have latterly been cited in our courts, they have not heretofore been accessible to the entire legal profession in this country. Price, $6,50.

The same publishers have ready the first volume of HILLIARD'S American Law, heretofore announced.

The second volume of Judge Lowell's Reports has been published by Messrs. LITTLE, Brown & Co. It is, ex necessitate rei, timely, of real value, and in every way a good work.

Messrs. BAKER, Voorhis & Co. have ready a new edition, the tenth, of Bump's Bankruptcy.

Messrs. W. H. & O. H. MORRISON have published a new work on Partnership, by Prof. TYLER; also, a Digest of the Published Opinions of the Attorney General, and of the Leading Decisions of the Federal Courts, with reference to International Law, Treaties, and kindred subjects.

The American Student's Blackstone: Commentaries on the Laws of England, in Four Books, by Sir WILLIAM BLACKSTONE. So abridged as to retain all portions of the Original Work which are of Historical or Legal Value, with Notes and References to American Decisions, for the use of the American Student. By GEORGE CHASE, LL. B., Assistant Professor of Municipal Law in the Law School of Columbia College.

The title of this volume sufficiently explains its nature and objects, and is a sufficient argument in its favor. The book is in accord with the best tendencies of the period; it is orthodox and yet progressive. It is intelligently edited, and in almost every important particular quite up to any fair standard.


NEW SERIES. — DECEMBER, 1877. – VOL. IV., No. 12.





Albany L. J. – Albany Law Journal, Albany, N. Y., WEED, Parsons & Co.
Am. Law Rec. — American Law Record, Cincinnati, O., H. M. Moos.
Am. Law Reg. — American Law Register, Philadelphia, Pa., D. B. CANFIELD & Co.
Cent. L. J. - Central Law Journal, St. Louis, Mo., SEYMOUR D. THOMPSON.
Chicago L. N. Chicago Legal News, Chicago, Ill., Chicago LEGAL News Co.
Ins. L. J. - Insurance Law Journal, New York, C. C. HINE, 176 Broadway.
Int. Rev. Rec. Internal Revenue Record, New York, W. P. & F. C. Church.
La. L. J. Louisiana Law Journal, New Orleans, La.
Leg. Chron. - Legal Chronicle, Pottsville, Pa., Sol. Foster, JR.
Leg. Int. — Legal Intelligencer, Philadelphia, Pa., J. M. Power WALLACE.
Mo. Jur. — Monthly Jurist, Bloomington, Ill., T. F. TIPTON.
N. B. R. – National Bankruptcy Register, New York, CAMPBELL & Co.
Pac. Law Rep. Pacific Law Reporter, San Francisco, Cal., J. P. BOGARDUS.
Pittsb. L. J. Pittsburg Legal Journal, Pittsburg, Pa., J. W. & J. S. MURRAY.
W. L. R. - Washington Law Reporter, Washington, D. C., JNO. L. Ginck.
W. N. C. - Weekly Notes of Cases, Philadelphia, KAY & Bro.
West. Jur. — Western Jurist, Des Moines, Iowa, Mills & Co.

BANKS AND BANKING. 1. PRESUMPTIONS AS TO KNOWLEDGE OF DIRECTOR. — A person who holds the office of director and vice-president of a bank, and at the same time has private and personal dealings with the bank, is conclusively presumed to know, so far as the same affects his said personal dealings, the general condition and management of his bank, and to know everything of importance that occurs therein, either at the time it occurs or soon thereafter. He is bound to know when his bank is in an embarrassed condition, and the condition of an account which has been overdrawn for several months; and where the cashier gives a credit of $2,100, to the person having such overdrawn account, for an insufficient and illegal consideration, such officer is bound to know the same within less than several days thereafter. German Savings Bank v. Wulfkuhleez, S. C. Kans., Cent. L. J., October 26, 1877.

2. BANK CANNOT BUY ITS OWN STOCK. — A bank, organized under the laws of Kansas, cannot purchase its own stock, except in some cases for the purpose of securing a previously existing debt. Ib.


Vol. IV.]

Digest of Cases.

(No. 12.

3. LIABILITY OF DIRECTOR. — Where W., a stockholder and also a director and the vice-president of such a bank, sells his stock of such bank while the bank is in an embarrassed condition to H., who has no funds in the bank, but, on the contrary, has an overdrawn account with the bank of several months' standing, and W. receives in payment for his stock a check for $2,100, drawn by H. on the bank; and H. then sells said stock to the cashier of the bank, who purchases it for the bank, but who bas no authority from the bank or from any one else to purchase the same for the bank, and the cashier gives to H. a credit for such stock for $2,100 on the books of the bank, and on the same day the cashier gives to W. a credit on the books of the bank for the amount of said check and charges H. with a like amount; and several days thereafter W. draws said amount of $2,100 out of the bank: Held, that the bank may maintain an action against W. for the amount of money so drawn out of the bank. And it makes no difference, in such a case, that said stock may in fact have belonged to W. and his brother as partners, and that all the transactions in selling said stock, in getting said credit, and in drawing said money out of the bank, may have been carried on in the name of the firm. The acts of the cashier in said transactions cannot estop the bank as against W., who is a director and the vice-president of the bank. 16.


BILLS AND NOTES. 1. WAIVER OF EXEMPTION IN JUDGMENT NOTE. — IGNORANCE OF MAKER. — NEGLIGENCE. — In the absence of any evidence of fraud or mistake a waiver of exemption contained in a judgment-note is not avoided by proof that the maker at the time he signed the note could not read it, did not inquire as to its contents and was not aware that it contained the waiver of exemption. A. signed a judgment-note containing a waiver of exemption. He testified that he could not read English, that he asked no questions concerning the contents of the note, and was not aware that it contained the waiver. There was no evidence of fraud. The jury found specially that A. did not know that the note contained the waiver. Held, that the waiver of exemption was not avoided by the fact of A.'s ignorance that it was contained in the note. Adams v. Bachert, S, C. Pa., W. N. C. November 1, 1877.

2. “ PATENT RIGHT NOTES.” — INVALIDITY OF STATE ENACTMENT CONTROLLING. — A state statute entitled : “ An act to regulate the execution and transfer of notes or other obligations given for patent rights" consisted of two sections. The first section required all notes, and other negotiable or assignable instruments, the consideration of which, in whole or in part, consisted of the right to make, use, or vend any patented invention, to have prominently and legibly written or printed on its face the words : “ Given for patent rights.” Such notes were made subject to the same defence in the hands of every holder as existed against the original holder; and notes without this inscription were equally subject to such defences when the holder knew they were given for such a consideration.

The second section made it a misdemeanor to take, purchase, sell, or

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